February 20 2024
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No defence: the erosion of PACE rights

No defence: the erosion of PACE rights

Regulation of the police station stage of the criminal process by the Police and Criminal Evidence Act 1984 and the PACE Codes of Practice is rightly regarded as a major achievement, admired around the world by those who value justice and fairness, writes Ed Cape.

  • Ed Cape is the author of a range of practitioner texts, including Defending Suspects at Police Stations, he contributes to Blackstone’s Criminal Practice, and writes case comments for Criminal Law Review. Ed has recently completed two research projects on access to effective criminal defence in Europe, and is now working on a third project in Latin America.
  • This essay appears in No defence: miscarriages of justice and lawyers is that latest publication in the Justice Gap series and follows on from Wrongly Accused: who is responsible for investigating miscarriages of justice? (to be published in association with Solicitors Journal and Wilmington shortly). You can download that collection HERE.
  • Contributors for No Defenceinclude Eric Allison; Dr Ros Burnett; Prof Ed Cape; Dr Dennis Eady; Francis FitzGibbon QC; Mark George QC; Andrew Green; Campbell Malone; Michael Mansfield QC; Mark Newby; Daniel Newman; Paul May; Dr Angus Nurse; Correna Platt; Julie Price; Dr Hannah Quirk; David Rose; Adam Sampson; Satish Sekar; and Tom Wainwright. Thanks to all.



Ed Cape

Designing out defence lawyers
Based on the recommendations of the Royal Commission on Criminal Procedure (PDF), and its organising principles of fairness, openness and workability, it sought to balance the investigative needs of the police with the rights of citizens who, of course, may or may not have committed a criminal offence.

Under PACE, investigative powers were largely dependent on investigative need, and their use was often subject to authorisation by officers unconnected with the investigation and more senior to the officer dealing with the case. The custody record was established as a mechanism for making the use of such powers more transparent and, therefore, making the police more accountable. The inherent vulnerability and needs of the suspect detained in a police station was recognised by the creation of an almost absolute right to consult a lawyer, in person at any time, supported by a non-means-tested right to legal aid.

Whilst the basic structure of PACE has survived the intervening quarter of a century, when examined in detail it is evident that it is now a pale shadow of its former self. Police powers have increased, almost year-on-year, and successive governments have become increasingly unconcerned about suspects’ rights.

Principles of fairness and justice have given way to managerialist imperatives of efficiency and economy, and effectiveness – not in securing just outcomes but in processing people in a way that, if possible, avoids the need to test evidence of guilt in a trial. In this context, the right of access to a defence lawyer has become less a mechanism for ensuring the integrity of the investigative process, and thereby ensuring fair trial, and more a way of transmitting system imperatives to the suspect and ensuring that they co-operate.

So in what ways have police investigative powers increased? The Royal Commission was of the view that given the obvious interference with liberty that arrest represents, those suspected of crime should be arrested and detained at a police station only when this was necessary for the purposes of the investigation or to protect the public. Where arrest was not necessary, prosecution could be by way of summons.

As a result, when PACE was originally enacted powers of arrest were largely confined to more serious, ‘arrestable’, offences although it also enabled the police to arrest in respect of other offences where, for a variety of reasons, this was necessary. This was swept away in 2006 when the police were given powers to arrest for any offence, however minor.

The officer carrying out the arrest must normally have reasonable grounds for suspecting the person of committing an offence, but the courts have repeatedly confirmed that the threshold of suspicion is low. Under the new powers, an arrest has to be ‘necessary’, but although a welcome clarification of the meaning of ‘necessary’ is introduced in amendments to Code G in November 2012, interpretation by the courts has largely rendered it meaningless.

The trial starts at the station
Generally, following arrest a suspect must be taken to a police station as soon as practicable, but under powers introduced by the last government the arresting officer may alternatively release the suspect on conditional bail – which could include conditions to live in a particular place, or not to go to a particular part of town – without any statutory limit on the period for which they are bailed.

Once at the police station, a decision to detain the suspect is more or less routine. The police are under no obligation to disclose to the suspect anything more than the reason for arrest and detention. Yet, if the suspect fails to tell the police, in interview, of facts which they later rely on in their defence (which is a more onerous requirement than simply disclosing their defence) this can be used by the prosecution, in effect, as evidence of guilt. Powers to take fingerprints and non-intimate samples, which were previously confined to circumstances where they were needed for investigative purposes and which required authorisation from a senior officer, are now routinely available. Until the Protection of Freedoms Act 2012 comes into force, the prints and DNA profiles are kept indefinitely even if the person is not charged or, having been prosecuted, is acquitted.

When it comes to a charge decision, responsibility is split between the police and a Crown Prosecutor – broadly the custody officer takes the decision in cases that are likely to be dealt with in a magistrates’ court, and a prosecutor takes the decision in other cases. In either case, they have a large degree of discretion in determining whether there is sufficient evidence to charge. Whilst normally they must be satisfied that there is sufficient evidence such that a court is likely to convict, if they believe that bail should not be granted they can decide to charge merely on the basis of reasonable suspicion coupled with a belief that more evidence is likely to be forthcoming. If they decide not to charge, they can bail the suspect subject to conditions, such as those mentioned above, and this can last for months if not years.

The aphorism that trial starts at the police station is now more true than ever. In addition to the fact that it is not only what the suspect does say, but also what they do not say, which can be used as evidence against them, the approach to sentence discount for a guilty plea that has developed over the past decade means that a failure to admit an offence at the police station can prevent a person who subsequently pleads guilty from receiving the full discount.

Furthermore, the virtual court initiative means that the initial bail hearing can be conducted whilst the suspect is still at the police station, and the Stop Delaying Justice! initiative means that the accused must normally be ready to indicate their plea at the first court appearance after leaving the police station, which may be within a matter of hours.

Out-of-court disposals, such as cautions and penalty notices for disorder (don’t be misled by the title – they can be imposed for minor thefts and criminal damage) mean, in effect, that in many cases the trial takes place at the police station. The use of such disposals, which although not formally convictions go on the person’s record, have increased by well over 100 per cent since 2003 and more than four out of ten people who are proceeded against are dealt with in this way.

Right to a lawyer
Taken together, these developments mean that the right to consult a lawyer at the police station is now more important than ever, and the need for high quality legal assistance is now greater than ever. But as the police are given more power, and while the police station becomes the location of the trial, or the place where the outcome of the trial is largely determined, the position of the defence lawyer has been weakened. CDS Direct, which provides telephone-only legal advice in minor cases, is a likely candidate for expansion as the Ministry of Justice seeks to make savings. Fixed fees for police station work reward lawyers who do the minimum for their clients rather than what is necessary to effectively defend them. The government’s war on ‘bureaucracy’ may well mean that it has another go at reducing the utility of the custody record. Despite promises by the last government to enable defence lawyers to make representations to prosecutors regarding charge, in practice they almost always hide away behind the scenes. There is no provision for lawyers to make representations regarding police bail. And defence lawyers are literally being designed out as custody suites are increasingly being built or refurbished in a way that physically prevents them from speaking to the custody officer in person and from looking at the custody record.

Defence rights are being managed out of the investigative stage of the criminal process, and the danger is that miscarriages of justice are being managed back in.